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Can LGBT immigrants get green cards when they marry?

Until the 2013, immigrants in same sex relationships were often without a way to stay together in this country. For years, our immigration laws – like our marriage laws—discriminated against gay couples. While US citizens who were heterosexual could sponsor their immigrant spouse for a green card, the same was not true for US citizens who were gay.

Then, the U.S. Supreme Court struck down as unconstitutional both Prop 8 and the Defense of Marriage Act (“DOMA”) eight years ago. This meant that, suddenly, for the first time, Lesbian, Gay, Bisexual and Transgender (LGBT) immigrant spouses of U.S. citizens could marry in California and get their green cards through the US immigration process.

Since that decision, the Department of Homeland Security has been processing permanent residence applications in same-sex marriages just like all others: if you’re married to a U.S. citizen, whether gay or straight, there is usually a path to a green card for you.

This article will explain how a LGBTQ citizen petitions for their spouse for permanent residence in the United States, what the procedure looks like and what the requirements are

The immigration procedure following a same-sex marriage

A spouse of a US citizen is an “Immediate relative” under the Immigration system, which means that this category does not have any limit or cap on the number of visas. Therefore, there is no “waiting period” other than the amount of time the Department of Homeland Security (DHS) or the U.S. consulate abroad takes to process these visas.

If the immigrant came here with a visa, the entire procedure can usually be completed here, lasting about 16-24 months. No pardon is necessary in this case. After the marriage takes place, application forms must be submitted along with other forms and supporting documents to prove the validity of the marriage. At the end of the process, an interview takes place at the DHS office. Conditional permanent residence is granted for two years. The immigrant spouse can obtain citizenship 3 years later.

If the spouse is outside the U.S., then an application is filed here and once approved, the relative goes through “consular processing” back home in their home country.

The pardon of inadmissibility is also available to LGBT immigrants

In the case where the immigrant came to the US without a visa, the process is a bit longer and more complicated, usually requiring that the immigrant obtain a "pardon" from the USCIS. The pardon process for married LGBT couples is the same process that applies to heterosexual couples.

In short, to obtain the waiver, one needs to prove “extraordinary hardship” would occur to the spouse if the immigrant is not allowed to come back to the US. In 2014, the Obama Administration implemented a major immigration policy change that allows eligible spouses of US citizens to apply for the pardon inside the US, rather than in their home country. This takes away the risk of the immigrant being trapped abroad if the pardon is denied.

The couple applying for the waiver should submit as much documentation as possible to support these arguments of hardship. It is helpful to have the spouse meet with a counselor or psychologist to document any psychological hardship the family member would suffer if the immigrant is required to return to their home country. We also recommend submitting other statements from relatives, friends, employers, co-workers, clergy and others in support focusing on the good moral character of the immigrant and their importance to their family members.

If the pardon is approved, the immigrant spouse does need to have a short interview at the US consulate in their home country in order to get their lawful permanent resident status. If the immigrant is otherwise eligible, this interview should be simply a formality.

It is recommended that any immigrant obtain legal advice before leaving the country as part of this or any other immigration process.

Immigration reform for LGBTQ Couples

The U.S. Supreme Court decision on DOMA represented the arrival of "immigration reform" for many LGBT immigrants. I had clients that had been waiting 20 years to get their status back when the law discriminated against gay spouses—many simply had to live abroad or apart. Fortunately, now LGBT couples no longer have to choose between staying here or staying together.

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